*
17293.
No. 38.
(SOUTH AFRICA.)
SIR.
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, June 1, 1900. WE were honoured with your commands, signified in Mr. Graham's letter of the 22nd May, stating that he was directed by you to transmit to us a letter received from the War Department, dated 2nd May, and to request our consideration of certain questions which had arisen with regard to the custody and revision of the proceedings of the tribunals administering Martial Law in Cape Colony and Natal.
That the proceedings of Courts Martial held under the provisions of the Army Act were, you understood, transmitted to the Departinent of the Judge Advocate General (1) for custody, in order that there might be a permanent and authentic record kept, and (2) for revision, in order that the proceedings of such Courts might be kept strictly within the limits of the law.
That it was understood, however, that Courts Martial held in the field civilians
upon were held not under military law, but under martial law, in virtue of the autocratic authority of the Commander-in-Chief of Her Majesty's forces, the trial, the tribunal and the decision being within his unlimited discretion. That it would, therefore, seem open to doubt whether such proceedings should be sent to the Judge Advocate General for record or revision for which so far as you were aware there was no precedent. That Mr. Graham was to transmit to us the record of certain proceedings of a Court Martial held upon a civilian of Ladysmith, named Foss, which had been submitted to the Colonial Office by the Deputy Judge Advocate General.
That it was further to be observed that inasmuch as acts done under the authority of martial law must be subsequently validated by an Act or Acts of Indemnity, there would appear to be some doubt whether, if the decisions of tribunals held under its authority in South Africa were revised in this country, and action was taken in consequence of such revision, it might not be necessary that an Act of the Imperial : Parliament should be passed to validate retrospectively such action under martial law as proclaimed in South Africa as might have taken place in this country. That it was desired to avoid, if possible, the passing of any such Imperial Act.
That Mr. Graham was to request us to take these matters into our consideration, and to advise you-~~-
1. Whether there was any legal objection to the proceedings under martial law in South Africa being transmitted to the Judge Advocate General in this country (a) for record, (b) for revision.
2. Whether if such proceedings were (a) recorded, or (b) revised, in this country
an Act of the Imperial Parliament would be required to validate such record or revision.
3. Whether such record or revision could be regarded as an exercise by Her Majesty of the Prerogative of the Crown, not requiring legislative validation, or
4. Whether such validation could he conferred by Acts of the Cape Colony, or
Natal respectively.
5. Generally.
In obedience to your commands we have taken the subject into our consideration, and have the honour to
Report-
1. That we do not think it expedient that the proceedings under martial law in South Africa should be transmitted to the Judge Advocate General in this country for either of the purposes mentioned in the question.
These proceedings are not in the administration of military law, in which case they would properly fall under the revision of the Judge Advocate General. The so-called Courts, although the forms of military law are employed, are not Courts in any legal sense, and are engaged, not in the administra- tion of law, but in the application of force under the direction of the
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